PRAYER IN PUBLIC SCHOOLS AND BUILDINGS-FEDERAL COURT JURISDICTION TUESDAY, SEPTEMBER 9, 1980 HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON COURTS, Washington, D.C. The subcommittee met at 10:20 a.m. in room 2237, Rayburn House Office Building, Hon. Robert W. Kastenmeier (chairman of the subcommittee) presiding. Present: Representatives Kastenmeier, Danielson, Mazzoli, Gudger, and Harris. Staff present: Timothy A. Boggs, professional staff member; Thomas E. Mooney, associate counsel. Mr. KASTENMEIER. The subcommittee will come to order. This is our concluding day of hearings on the question of school prayer legislation, taking the form of constitutional amendments in some cases, statutory language including prominently S. 450, the so-called Helms amendment, and other proposals, treating the subject of school prayer. We're very honored this morning to have some of our colleagues here. In particular, I'd like to greet one of the most distinguished members that the subcommittee has ever had, one of the hardest working members. I cannot say enough about him, in any event, I'd like to greet our dear friend, the Honorable Robert F. Drinan, who is our first witness this morning. TESTIMONY OF ROBERT F. DRINAN, REPRESENTATIVE IN CONGRESS OF THE UNITED STATES FROM THE FOURTH DISTRICT OF THE STATE OF MASSACHUSETTS Mr. DRINAN. Mr. Chairman and members of the subcommittee, I appreciate this opportunity to appear before you to discuss the Helms amendment to S. 450. As you know, the Helms amendment, which was added to S. 450 on the Senate floor, would deny Federal district courts all original jurisdiction, and the Supreme Court all appellate jurisdiction over cases challenging State laws related to voluntary prayer in public schools and public building. Although the Helms amendment poses a somewhat novel approach to the establishment of prayer in our public schools, this troublesome question, Mr. Chairman, is certainly not new to the Congress or the courts. In both 1966 and in 1971, Congress rejected adding a school prayer amendment to the Constitution. The courts, too, have dealt with numerous cases testing the limits of the establishment clause and the balance to be maintained between the establishment clause and the free exercise clause. In the Supreme Court decisions of Engle and Abington in 1962 and 1963, the Court held that the establishment of a religion clause of the first amendment was violated by State-sponsored devotional activities in public schools, regardless of whether student participation in such activities was compulsory or voluntary. Related court decisions have similarly upheld as unconstitutional, State participation in other forms of religious proselytizing in the public schools, such as permitting nonpublic teachers to come to classrooms to give religious instruction and sanctioning the distribution of Gideon Bibles to consenting students. The courts, Mr. Chairman, have found no constitutional violation in schools proving objective teaching about religion, releasing students so wishing during the school day for religious instruction off the public school premises or having baccalaureate services or invocations and benedictions in connection with commencement exercises. Mr. Chairman, in 1966 when I was dean of the Boston College Law School, I was invited to testify before the Senate Judiciary Subcommittee on Constitutional Amendments about a then proposed constitutional amendment to allow prayer in public schools. I said at that time that we are misled if we believe that the public schools can somehow combine piety and learning in a satisfactory way. The illusion that the public schools can train our young people in morality and piety is a persistent myth. There have been two unsuccessful efforts, as I said, Mr. Chairman, and much has been said and written about them. There are volumes of congressional hearings, but I think that we should note that the majority of established religions oppose the Helms amendment, as they have opposed other efforts to amend the Constitution directly or indirectly. Indeed, Mr. Chairman, the Helms amendment goes far beyond the issue of establishing prayer in the public schools. It would inflict, in my judgment, severe damage on our system of cooperative federalism, and it raises the most constitutional questions. First, Mr. Chairman, let me address a very practical consideration. That is, that the Helms amendment would not accomplish the goals which it's sponsors seek to accomplish. The supremacy clause of the Constitution requires every State and local official to obey the commands of that great charter. That duty extends to the decisions of the Supreme Court interpreting the Constitution. In 1958 when officials in Arkansas sought to defy orders of the U.S. district court to desegregate the public schools in Little Rock, the Supreme Court once again reminded State officials that the supremacy clause compelled them to obey decisions of the Court construing the Constitution. Thus, even if this provision were to become lost, State legislators, Governors, and judges would be bound to follow and enforce applicable Supreme Court decisions in the area of school law. Mr. Chairman, I think it's very relevant to quote the supremacy clause, article VI clause, which states: This Constitution and the laws of the United States which shall be made in Pursuance thereof; ... shall be the supreme Law of the Land; and the Judges in every state shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. If State officials, therefore, did authorize school prayer in disregard of the applicable Supreme Court decisions and in disobedience to their oath of office to uphold the Constitution, the State courts would be open to complaints challenging the constitutionality of such practices. It should be recalled that the Helms amendment takes away jurisdiction only from the Federal courts to hear suits involving school prayer. The State courts, obviously, remain free to hear and determine challenges to school prayer laws, regulations and ordinances. State judge would still be bound by the supremacy clause to apply faithfully the previous decisions of the Supreme Court. Indeed, our system of federalism has worked through the years largely because State officials, including the State judges, have in the main, faithfully obeyed and enforced the provisions of the Constitution and Supreme Court decisions interpreting them. Mr. KASTENMEIER. May I interject and ask what if, in fact, the Helms amendment were passed and States did not faithfully follow the existing Supreme Court decisions, who is the challenger? Who is to test that? Mr. DRINAN. Mr. Chairman, you have pointed out another danger in the Helms amendment. Presumably no U.S. attorney would be able to bring action against them, because the State courts or the Federal courts would not be able to hear these. You have pointed out another basic infirmity, basic unconstitutionality, really, in the proposed Helms amendment. I thank you for your comment. Even today with review available in the Supreme Court for Federal questions decided by State courts, very few such cases are, in fact, reviewed by the Supreme Court. This subcommittee, Mr. Chairman, is especially aware of how few of these cases are reviewed under the Supreme Court appeal and certiorari jurisdiction. I like to think that an indepth study would show that State courts do largely adhere to the decisions of the Supreme Court, thus making unnecessary review of many State court judgments by the Supreme Court. Another practical consideration is that some State courts might interpret the first amendment and the Supreme Court decisions under it in a broader fashion than the Supreme Court itself has. A Supreme Court of Federal questions has two sides to it. In some instance, the Court will reverse a State court judgment, because the State court has been too narrow in defining Federal rights. In other cases, the Supreme Court will reverse court judgment, because the State court has gone too far in interpreting the Federal Constitution. There are at least two instances in recent years where the Supreme Court has reviewed cases in the category. In the cases mentioned in my testimony, Mr. Chairman, the Court reversed the rulings of State supreme courts which had given too expansive readings to the Court's Miranda ruling and its decisions involving the confrontation clause of the sixth amendment. In both cases, the Supreme Court held that the State courts have interpreted the Federal Constitution and decisions under it in too liberal a manner. These examples, Mr. Chairman, remind us once again of the important role of the Supreme Court in maintaining a uniformity of construction to the provisions of the Constitution. Taking away the jurisdiction of the Court to entertain certain kinds of federal questions would utterly destroy that uniformity. In the area of school prayer, it may be that all State courts would adhere faithfully to the prior decisions of the Court, as I noted earlier, and there would be no problem of uniformity. On the other hand, there could be an erosion of that obedience over time which could result in differing interpretations of the first amendment by State judges. In place, Mr. Chairman, of the Supreme Court's voice as the arbiter of such difficult questions, there would be chaos. The first amendment might mean one thing in Massachusetts or New York and quite another thing in California or Wisconsin. The 16 words about religion in the first amendment have served our country very well, Mr. Chairman, and if I may be personal, Mr. Chairman, for a moment, I wrote a book about this in 1963, entitled "Religion: The Courts and Public Policy," published by McGraw-Hill. Those 16 words went unchallenged, really undefined, in the period from 1791 until at least the mid-20th century. We have had only about 20 years of constitutional construction and relatively few Supreme Court decisions, in which the establishment clause has been defined. Before we directly or indirectly change the substance of the first amendment, we should be very certain that the changed version is more advantageous to our religiously pluralistic Nation. I don't know how we would survive as a nation, if the great principles of religious freedom embodied in the first amendment are subject to the vagaries of interpretation by 50 State supreme courts and countless lower State courts. The sponsors of this amendment totally ignore the flexibility of constitutional interpretation. Over the years, the Supreme Court has changed its mind on many questions. I think immediately of questions involving school desegregation, reapportionment, women's rights, the right to counsel in criminal cases and other topics. Changes in interpretation have come from various forces. Sometimes they have occurred because of new justices being appointed to the Court by a new President, reflecting perhaps a change in the national mood and a change in national priorities and attitudes. On other occasions, it has been the Court itself which, upon greater reflection or more persuasive argument, announced a new rule of decision in some more fundamental constitutional matter. When the Court in 1937 sustained the National Labor Relations Act, at the time Congress was considering Roosevelt's courtpacking plan, constitutional scholar Thomas Reed Powell observed that it was the switch in time that saved nine. Thus in a very fundamental and important sense, Mr. Chairman, this amendment is self-defeating, as it closes off one avenue of constitutional change which has traditionally been employed by those seeking alternatives in the Constitution without going through the amendment process. |